23:0168(21)NG - AFGE Local 1760 and HHS, SSA -- 1986 FLRAdec NG



[ v23 p168 ]
23:0168(21)NG
The decision of the Authority follows:


 23 FLRA No. 21
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1760, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
                                            Case No. O-NG-412
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and concerns the
 negotiability of eight Union proposals in connection with changes made
 by the Agency in its procedures for evaluating employees.
 
                           II.  Union Proposal 1
 
          1.  6-If an employee's Within-Grade Salary Increase (WIGI) or
       ladder promotion is pending, the last audit on record will be used
       to assess the employee's qualifications for as long as the audit
       record is maintained in the SF-7B Extension File.  No further
       audits will be conducted.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal conflicts with Office of
 Personnel Management (OPM) regulations, as stated in the Federal
 Personnel Manual (FPM), Chapter 531.  The Agency also contends that the
 proposal would require promotion decisions to be based on a single audit
 record which would be the sole criterion for the decision.
 
    The Union contends that the proposal is fully consistent with the
 requirements of law and that the Agency's position reveals that it has
 misunderstood the nature of the proposal.  The Union asserts that the
 proposal falls within the Agency's duty to bargain under section
 7106(b)(2) and (3) of the Statute.
 
                               B.  Analysis
 
    5.  U.S.C. Section 4302 requires agencies to establish performance
 appraisal systems under Office of Personnel Management (OPM) prescribed
 Government-wide regulations, /1/ which, among other things, shall
 provide for recognizing and rewarding employees whose performance so
 warrants.  5 U.S.C. Sections 5335 and 5336 specifically govern the
 granting of within-grade increases.  Subsequent to the filings in this
 case, OPM revised its regulations implementing these sections of title
 5.  OPM's revised regulations concerning within-grade increases appear
 at 5 C.F.R. Section 531.404 ("Earning within-grade increase.").
 Generally speaking, management decisions regarding such increases are
 made according to an OPM-approved Performance Management Plan (PMP).
 Under OPM guidelines, each agency is required to establish performance
 standards against which an employee's work is measured.  An employee's
 performance evaluation results in a written "rating of record." In order
 to receive a within-grade increase, the employee's performance of the
 duties and responsibilities of his or her assigned position must be at
 an acceptable level of performance, which is defined elsewhere in the
 regulations as "Fully Successful."
 
    In terms of this proposal, the audits to which it refers must be a
 part of an OPM-approved PMP for evaluating employees' performance or it
 would conflict with Government-wide regulations.  That is, if audits are
 not part of an OPM-approved PMP, they cannot legally be used for making
 within-grade or ladder promotion determinations.  Moreover, assuming
 that the audits referred to in the proposal are part of the Agency's
 OPM-approved performance appraisal system, the Authority finds that the
 proposal is inconsistent with 5 C.F.R. Section 531.404(a)(1) of OPM's
 revised regulations governing within-grade salary increases.  The
 proposal would require that an agency use an employee's last audit on
 record in determining whether the employee merits a within-grade salary
 increase.  The proposal would also require that no further audits be
 conducted after the last audit on record.  However, 5 C.F.R. Section
 531.404(a)(1) specifies that "when a within-grade increase decision is
 not consistent with the employee's most recent rating of record a more
 current rating of record must be prepared." This means, for example,
 that if the management official responsible for determining whether an
 employee merits a within-grade increase decides that the increase should
 be granted (or denied), the decision must be consistent with the
 employee's most recent rating of record.  That is, the decision to grant
 such an increase (or to deny such an increase) must be validated by the
 results of the employee's most recent performance evaluation in order
 for the within-grade increase to be approved (or to be disapproved).  If
 there is an inconsistency between what the management official believes
 the employee should receive and the results of the employee's most
 recent rating of record, the regulation requires that a more current
 rating of record be prepared to be used as the basis for an acceptable
 level of competence determination for the within-grade increase.
 
    Under the proposal, if there were an inconsistency between a
 management official's decision to grant (or to deny) a within-grade
 increase and the results of the employee's most recent rating of record,
 the official would be precluded from conducting any additional audits in
 preparing a more current rating of record.  However, under the
 assumption that audits are a part of the Agency's OPM-approved
 performance appraisal system, 5 C.F.R. Section 531.404(a)(1) requires
 the Agency to perform a new audit in the evaluation of the employee to
 prepare a more current rating of record.  Therefore, the proposal is
 inconsistent with this section of the C.F.R.
 
                              C.  Conclusion
 
    The audits referred to in Union Proposal 1 must be part of an
 OPM-approved performance appraisal system or the proposal conflicts with
 OPM regulations.  Moreover, assuming that the audits referred to in the
 proposal are part of an OPM-approved performance appraisal system, for
 the reason cited above, the proposal is inconsistent with 5 C.F.R.
 Section 531.404(a)(1).  Therefore, Union Proposal 1 is outisde the duty
 to bargain under section 7117(a)(1) of the Statute.  In view of this
 holding, section 7106(b)(2) and (3) are not applicable.  See, for
 example, National Federation of Federal Employees, Local 29 and
 Department of the Army, Kansas City District, Corps of Engineers, 21
 FLRA No. 31 (1986).
 
                  III.  Union Proposals 2, 3, 4, 5, and 6
 
          2.  8 -- On the day prior to the first day of the audit, the
       authorizer will be supplied with cases.
 
          3.  9 -- The authorizer will be given cases only from his/her
       terminal digit area to maintain the integrity of the terminal
       digit system.
 
          4.  10 -- Employees will not be required to work out-of-module
       cases during the audit.
 
          5.  17 -- To ensure uniformity, each employee will receive the
       same number of the same types of cases.
 
          6.  30 -- Awards will be distributed on a terminal digit basis
       and may be selected before or after screening.
 
                       A.  Positions of the Parties
 
    The Agency contends that all of these proposals conflict with its
 right to assign work under section 7106(a)(2)(B) of the Statute.  In
 addition, the Agency contends that Union Proposal 2 also violates
 section 7106(b)(1).
 
    The Union, on the other hand, disagrees with the Agency's view that
 these proposals violate management's right to assign work.  Rather, the
 Union contends that it is attempting to negotiate either procedures
 relating to the assignment of cases during an audit or the impact and
 implementation of that assignment.
 
                               B.  Analysis
 
           1.  Right to Assign Work Under Section 7106(a)(2)(B)
 
    Section 7106(a)(2)(B) of the Statute reserves to management the right
 to assign work.  It is well established that proposals which place
 restrictions on the exercise of management's right to assign work are
 outside the duty to bargain.  Specifically, the Authority has held that
 proposals which require an agency to sample employees' work in a
 particular way in order to audit employees' ongoing work performance
 interfere with management's right to "direct employees" and "assign
 work." In so holding, the Authority has stated that section
 7106(a)(2)(A) and (B) encompass the right to determine the quantity,
 quality, and timeliness of employees' work, the aspects of employees'
 work which will be evaluated in connection with the preparation of
 employee performance appraisals, and the right to audit employees' work
 by the methods management deems most appropriate for such purposes.  See
 Social Security Administration, Northeastern Program Service Center, 18
 FLRA No. 60 (1985) (Union Proposals 1, 2, 5 and 7);  American Federation
 of Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 631 (1980) (Union
 Proposal XVI), enforced sub nom. Department of Defense v. FLRA, 659 F.2d
 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
 (1982).
 
    All the proposals here would place restrictions and impose conditions
 on the exercise of management's right to evaluate its employees and,
 hence, to assign work.  Specifically, Union Proposal 2 would require
 management to assign cases prior to an audit rather than the day of the
 audit and unduly restricts management in the exercise of its right to
 assign work when it chooses to do so.  Union Proposal 3, which would
 restrict the assignment of cases to those in the employees' terminal
 digit area, would prevent management from assigning cases outside the
 terminal digit area.  Union Proposal 4 would preclude the assignment of
 a certain type of case ("out-of-module") to employees undergoing an
 audit.  Union Proposal 5 would prevent management from assigning
 different types or numbers of cases to employees subject to an audit.
 While the Union claims that this proposal merely requires that the
 Agency exercise its right to assign work in a fair manner, the proposal
 would in reality require the assignment of the same number and types of
 cases to employees undergoing an audit, thereby clearly interfering with
 that right.  Finally, Union Proposal 6 would require the assignment of
 certain types of claims ("awards") on a terminal digit basis, that is,
 based on a claimant's social security number, again limiting management
 in the distribution of work assignments.
 
          2.  "Appropriate Arrangements" Under Section 7106(b)(3)
 
    Whether a proposal constitutes a negotiable appropriate arrangement
 under section 7106(b)(3) of the Statute depends upon whether the
 proposal "excessively interferes" with the exercise of management's
 rights.  A threshold question is whether a proposal is in fact intended
 to be an arrangement for employees adversely affected by management's
 exercise of its rights.  National Association of Government Employees,
 Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 slip op. at
 8, (1986).
 
    On the basis of the record, the Authority finds that Union Proposals
 2, 3, 4, 5 and 6 are intended as arrangements for employees adversely
 affected by the exercise of management's rights.  Specifically, these
 proposals are intended by the Union to ameliorate the adverse effects on
 employees as a result of changes made by the Agency in the auditing
 procedures by which employees are evaluated, pursuant to the Agency's
 right to assign work under section 7106(a)(2)(B) of the statute.
 However, the Authority finds that in each case the proposed amelioration
 would totally preclude the Agency from exercising the various aspects of
 the right to assign work covered by the proposals.  A proposed
 amelioration which totally abrogates the exercise of a management right
 clearly does not constitute an appropriate arrangement within the
 meaning of section 7106(b)(3).  See American Federation of Government
 Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983),
 reversing and remanding American Federation of Government Employees,
 AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
 Washington, D.C., 7 FLRA 91 (1981).
 
                3.  Union Proposal 2 and Section 7106(b)(1)
 
    The Agency contends that Union Proposal 2 violates section 7106(b)(1)
 of the Statute by proposing "how" and "when" work will be performed.
 However, the Agency fails to demonstrate in what respect the proposal
 concerns the technology, methods and means of performing work so as to
 be negotiable only at the election of the Agency.  Therefore, the
 Authority finds that the Agency's contention in this regard must be
 denied.
 
                              C.  Conclusion
 
    Union Proposals 2, 3, 4, 5 and 6 directly interfere with management's
 right to assign work under section 7106(a)(2)(B) of the Statute, and
 therefore do not constitute negotiable procedures under section
 7106(b)(2) of the Statute.  Moreover, the proposals excessively
 interfere with management's right to assign work, so as to make them
 inappropriate as arrangements, under section 7106(b)(3), for employees
 adversely affected by the Agency's exercise of that right.  In addition,
 the Agency has failed to demonstrate that Union Proposal 2 violates
 section 7106(b)(1) of the Statute.  The Authority concludes, for the
 reasons and cases cited above, that the Agency is under no obligation to
 bargain concerning these proposals.
 
                           IV.  Union Proposal 7
 
          7.  21 -- In the event of dual-entitlement cases, the
       authorizer will be given credit for having processed two cases.
 
                       A.  Positions of the Parties
 
    The Agency states that the proposal is nonnegotiable because it
 conflicts with the right to assign work.  The Agency further contends
 that it is under no obligation to bargain over this proposal because
 there has been no change in its practice of crediting a dual-entitlement
 case as one case.
 
    The Union asserts that there is no merit to the Agency's statement
 that the proposal interferes with the assignment of work.  In addition,
 while not disputing the Agency's contention that no change has taken
 place in its practice of crediting dual-entitlement cases, the Union
 nevertheless claims that this is not a basis for finding the proposal to
 be outside the duty to bargain.
 
                               B.  Analysis
 
            1.  Assignment of Work Under Section 7106(a)(2)(B)
 
    The Authority has previously held that the right to assign work,
 under section 7106(a)(2)(B) of the Statute, includes, among other
 things, the right to determine what work shall be done, how it shall be
 done, by which employee it shall be done, and to determine the quantity,
 quality and timeliness of work required of an employee.  See National
 Treasury Employees Union and Department of the Treasury, Internal
 Revenue Service, 7 FLRA 235, 238 (1981).  The Authority has also held
 that proposals which substantively restrict management in its
 establishment of performance standards are inconsistent with section
 7106(a)(2)(A) and (B) of the Statute because they improperly interfere
 with management's right to direct employees and to assign work.
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
 F.2d 553 (D.C. Cir. 1982).  The issue in terms of this proposal is
 whether, by requiring the Agency to give employees performing the work
 associated with dual-entitlement cases credit for having processed two
 cases, the proposal would in any way infringe upon management's right to
 assign work.  In agreement with the Union, the Authority finds that it
 does not.
 
    In Department of the Treasury, 7 FLRA 235 at 238, the Authority
 determined that five union proposals relating to the counting of work
 for purposes of employee evaluation were within the duty to bargain.  In
 that case, as here, the proposals merely established procedures for
 counting the work accomplished by employees in a manner which the
 representative believed would result in an equitable and accurate
 measure of each employee's quantity of production.  The Agency had
 already determined, at its sole discretion, to assign work and to direct
 employees to accomplish the work through the establishment of
 performance standards.  In addition, the agency retained the right to
 adjust the performance standards to accommodate the manner in which work
 was to be counted.  For the same reasons that the proposals in that case
 were found to be negotiable, the Agency's contention here that Union
 Proposal 7 interferes with management's right to assign work, under
 section 7106(a)(2)(B), must be denied.
 
                          2.  The Duty to Bargain
 
    The Authority will decide here only the negotiability issues raised
 under section 7105(a)(2)(E) of the Statute.  Insofar as the Agency
 questions its obligation to bargain over this proposal because of its
 belief that there has been no change in its practice of crediting a
 dual-entitlement case as one case, the resolution of this question may
 be pursued in the context of other appropriate proceedings.  See
 American Federation of Government Employees, AFL-CIO, Local 2736 and
 Department of the Air Force, Headquarters 379th Combat Support Group
 (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at 306, n. 6
 (1984).
 
                              C.  Conclusion
 
    The Authority concludes, for the reasons and cases cited above, that
 Union Proposal 7 does not directly interfere with the Agency's right to
 assign work, but constitutes a negotiable procedure under section
 7106(b)(2) of the Statute.  Moreover, insofar as the parties disagree
 concerning their mutual obligation to bargain over the proposal, such a
 disagreement may be pursued in the forum most appropriate for its
 resolution.
 
                           V.  Union Proposal 8
 
          8.  31 -- If deficiency trends are noted by the Technical
       Assistant as a result of the audit, the employee responsible will
       be subject to formal training by EDTS personnel, if the employee
       so desires, prior to being placed on any partial or 100% audit.
       The parties agree, of course, that the intent of the audit is
       positive, not punitive;  that it is a method to determine the need
       for, and extent of, additional training or re-training.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal interferes with the right to
 assign work, under section 7106(a)(2)(B) of the Statute, because it
 would require management to provide training to its employees.  In
 addition, the Agency states that the proposal is nonnegotiable because
 it does not address management's implementing procedures or any
 identifiable adverse impact of management's decision regarding the
 selection of cases for audit.
 
    The Union states that the proposal is intended as a remedial
 procedure to insure that the auditing of particular employees will be
 fair and equitable, and that the application of particular audits to
 employees would be grievable.  The Union also states that the clear
 intent of the proposal is to authorize training to employees who display
 deficiency trends, which would be conducted by employees in the Employee
 Development and Training Section (EDTS).
 
                               B.  Analysis
 
    It is well established that proposals which require an agency to
 provide training to bargaining unit employees are outside the duty to
 bargain because the assignment of training constitutes an assignment of
 work.  See, for example, International Brotherhood of Electrical
 Workers, AFL-CIO, Local 121 and U.S. Government Printing Office,
 Washington, D.C., 8 FLRA 188 (1982) (Proposal 1);  International
 Association of Fire Fighters, AFL-CIO, CLC, Local F-116 and Department
 of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 752
 (1982).  By its own admission, the Union intends this proposal to
 require the training of employees who display deficiency trends.  The
 proposal also would require EDTS employees to perform such training.  In
 both respects the proposal conflicts with management's right to assign
 work within the meaning of section 7106(a)(2)(B) of the Statute by
 requiring management to assign a specific type of work (training) to
 certain employees to the exclusion of other responsibilities management
 might wish to assign to such employees.  Contrary to the Union's
 contention, therefore, the proposal does not constitute merely a
 remedial procedure leading to the fair and equitable application of
 audit results.  Rather, the proposal would directly interfere with
 management's statutory right to assign work.  See, for example, American
 Federation of Government Employees, AFL-CIO, Local 3804 and Federal
 Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986)
 (Union Proposal 4).
 
                              C.  Conclusion
 
    Union Proposal 8 directly interferes with management's right to
 assign work under section 7106(a)(2)(B) of the Statute, and therefore is
 not a negotiable procedure under section 7106(b)(2).  Accordingly, the
 Agency is under no obligation to bargain concerning the proposal.
 
                                VI.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) barg